[83WashLRev0403] It's Not Too Late: Applying Continuing-Violation Theory to the Designation of Critical Habitat Under the ESA

Abstract:

Abstract: The Endangered Species Act (ESA or the Act) requires the United States Fish
and Wildlife Service (the Service) to designate critical habitat for every species it lists as
threatened or endangered. Generally, the Service must designate critical habitat within one
year of listing the species. If it cannot determine the species’ habitat at the moment of listing,
it can issue a finding of “not determinable,” which gives it one additional year to study the
species and its habitat needs. At the end of that additional year, the Service must list the
critical habitat, using whatever data is available. On close to 1500 occasions, the Service has
failed to designate critical habitat within one year of issuing a “not determinable” finding.
The Service’s duty to designate critical habitat is enforceable by private parties under the
ESA’s citizen-suit provision. Because the ESA does not contain a statute of limitations, these
citizen suits are subject to the general federal six-year statute of limitations. Courts have
disagreed on how the statute of limitations applies when citizens file claims to force the
Service to list critical habitat for a threatened or endangered species. The Eleventh Circuit
has held that the statute of limitations time-bars the suits, while three different district courts
have tolled the statute of limitations under different theories. This Comment argues that
courts should interpret the Service’s failure to designate critical habitat as a continuing
violation that perpetually tolls the statute of limitations until the Service performs its duty.
This approach is consistent with the statute’s plain text, and it advances the ESA’s single,
overriding policy purpose: to protect endangered and threatened species from extinction.